Surrogacy: A recent case study

Surrogacy is where one woman bears a child for another. It may sound simple, but the ethical and legal issues associated with surrogacy are complex. In New Zealand, surrogacy is regulated by the Human Assisted Reproductive Technology Act 2004 (HART) and prior approval of a surrogacy arrangement is required by the Ethics Committee on Reproductive Technology (ECART). Further, where IVF surrogacy is needed, all parties must undergo considerable counselling before an application to ECART can be made.

Matt, Aroha and Kathryn

We have recently provided legal advice to Aroha*, her husband Matt* and her cousin Kathryn* who have now had their IVF surrogacy application approved by ECART. Aroha and Matt’s embryo will be implanted in Kathryn to carry for 9 months.

Aroha and Matt are unable to have a second child. Aroha’s cousin Kathryn (who has completed her own family) offered to carry Aroha and Matt’s second child. Kathryn is a New Zealand citizen but lives and works in Indonesia. Despite all the parties agreeing to the surrogacy arrangement, they are each required to receive independent legal advice as to the legal issues associated with surrogacy. Such issues include:

Surrogacy arrangements are legally unenforceable

Whilst not illegal, any written or verbal surrogacy arrangement is unenforceable in New Zealand. If Kathryn decided she wanted to keep the child, she could, and it would then ultimately be up to the Court to decide what is in the child’s welfare and best interests.

Parental status

Due to the operation of law, a woman who gives birth to a child as a result of a surrogacy arrangement (Kathryn) is the child’s mother regardless of genetic make-up. Therefore Kathryn will be the legal parent; not Aroha and Matt. Further Kathryn’s partner not Matt will be the child’s father.

Aroha and Matt must then adopt their biological child from Kathryn (itself an involved legal process).

If complications arise during the pregnancy, Kathryn will have the final say on what action needs to be taken (including termination of the child). Also if Aroha and Matt change their minds and decide that they do not wish to have the child (for example if the child is born with a disability) the legal parental responsibility will be Kathryn’s alone.

Surrogacy related costs

Commercial surrogacy is illegal in New Zealand and punishable by up to 1 year’s imprisonment and / or a fine of $100,000. Any financial compensation or reimbursement for pregnancy costs may be deemed a “payment for adoption” and is prohibited by the Adoption Act. The only expenses Kathryn can be reimbursed for are those associated with counselling, independent legal advice and the assisted human reproduction procedure.

Should Kathryn have any difficulties during the pregnancy, meaning she has to take time off work, she is prohibited from receiving any form of payment for compensation or financial loss.

Kathryn also needed to check her life insurance policy to ensure that should she pass away she would be covered (which she was as the life insurance payment is received due to her death; not because she was acting as a surrogate.)

These are just some of the matters Aroha, Matt and Kathryn have had to consider in making their application to ECART. Fortunately all parties continue to be extremely excited about the journey they are about to embark on together. However, the complex practical and legal realities of surrogacy arrangements must be carefully managed which makes it extremely important to ensure all parties are fully informed before beginning the surrogacy journey together.

*names changed to protect identity

Fay is a Solicitor in the Harman’s Family Law team. Fay completed her Honours Dissertation on Surrogacy in New Zealand and conducted a comparative analysis of the legal aspects of domestic and international surrogacy. If you have any queries regarding the surrogacy process, or require independent legal advice and/or a legal report to be completed to form part of the ECART Application, please do not hesitate to contact Fay to make an appointment.

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